Ornales v. Wigger

• Decision Date: 23 May 1950
• Citation: 218 P.2d 531,35 Cal.2d 474
• Court: California Supreme Court
• Parties: ORNALES v. WIGGER et al. L. A. 21336

Page 531

218 P.2d 531

35 Cal.2d 474

ORNALES v. WIGGER et al.

L. A. 21336.

Supreme Court of California

May 23, 1950.

Rehearing Denied June 22, 1950.

Marcus, Rabwin & Nash and Robert M. Newell, Los Angeles, for appellant.

Bauder, Gilbert, Thompson, Kelly & Veatch and Patrick H. Ford, Los Angeles, for respondents.

CARTER, Justice.

Plaintiff sued for damages for personal injuries sustained by her as the result of an accident which occurred at about 6:30 p. m. on December 24, 1946, at the intersection of Main and Workman Streets in the city of Los Angeles. Main Street from north to suoth, is 50 feet wide and has streetcar tracks on either side of the single center line. Workman Street intersects with Main runs east and west and is 35 feet in width. At night, the intersection is illuminated by a double street light at the northwest corner, and single street lights on the southeast and southwest corners. There are marked crosswalks at the intersection for pedestrian use.

It was raining on the night of the accident, and plaintiff, Louise Ornales, who was dressed in black and who was carrying an umbrella, was proceeding toward a grocery store on the northwest corner of the intersection. At the time there was little or no vehicular traffic on Main Street, and Mrs. Ornales was walking approximately in the center of the northerly marked crosswalk and was about three-fourths of the way across the street when the accident occurred. Mrs. Ornales testified that she looked in both directions before she started to cross the street and that she looked again just after she crossed the center line. She had taken two or three additional steps when she was struck by, or walked into, an automobile driven by defendant, Myrtle E. Wigger. Mrs. Wigger, accompained by her husband, was driving a 1931 Ford sedan in a southerly direction on Main Street at a speed of about fifteen or twenty miles an hour. The lights of the car were on low beam. At the time of the accident the car was about half way between the streetcar tracks west of the center line and the western curb of Main Street. The defendant Mrs. Wigger, testified that she did not see Mrs. Ornales prior to the accident and that all she had seen was a black parasol going by the lefthand window of the car and that she had heard a scream. After the accident, Mrs. Ornales was lying in the marked crosswalk close to its southern boundary. Mr. and Mrs. Wigger and a neighbor boy carried the injured woman to the porch of a nearby house where the Wiggers unsuccessfully tried to obtain an ambulance by telephone. Finally, the Wiggers drove Mrs. Ornales to the General Hospital where it was ascertained that she had received a fracture of the skull, a two-inch cut on her right temple, severe bruises on her right elbow and knee, and other injuries.

During the trial before a jury, plaintiff's motion for a directed verdict was denied. The jury returned a verdict for defendant, and plaintiff then made a motion for judgment notwithstanding the verdict and for a new trial, both of which were denied by the court. Plaintiff's appeal is based on the following contentions: (1) That the instruction given by the court on the effect of a violation of section 506(a) of the Vehicle Code was prejudicial error; and (2) that the court over-instructed the jury with respect to contributory negligence; and (3) that the trial court's failure to instruct the jury properly on the meaning and effect of certain impeaching evidence was prejudicial error.

Section 560(a) of the Vehicle Code provides that 'The driver of a vehicle shall yield the right of way to a pedestrian crossing the roadway within any marked cross-walk or within any unmarked crosswalk at an intersection, except as otherwise provided in this chapter.' (No exception is here involved.)

The instruction given by the trial court is as follows:

'Even though you may find in this case from a preponderance of the evidence that one of the parties violated one or more sections of the Vehicle Code of the State of California, you are instructed that the proof of such violation raises only a rebuttable presumption that he or she was negligent, and that such presumption is not conclusive and may be overcome by other evidence showing that under all of circumstances surrounding the event the conduct in question was excusable, justifiable and such as might reasonably be expected from a person of ordinary prudence. In this connection you may assume that a person of ordinary prudence will reasonably endeavor to obey the law and will do so unless causes not of his own intended making induce him without moral fault to do otherwise.

'You are further instructed that a violation of law is of no consequence in this action unless it was the proximate cause of, or contributed in some degree as the proximate cause of, injuries found by you to have been suffered by the plaintiff.'

It is plaintiff's contention that there was no evidence in the record to justify the portion of the instruction which permitted the jury to determine that defendant's violation of the Code section was excusable or justifiable under the holding of the majority in Satterlee v. Orange Glenn School District, 29 Cal.2d 581, 177 P.2d 279. It is plaintiff's position that the jury should have been instructed that defendant was negligent as a matter of law.

In the Satterlee it was held that 'An act which is performed in violation of an ordinance or statute is presumptively an act of negligence, but the presumption is not conclusive and may be rebutted by showing that the act was justifiable or excusable under the circumstances. Until so rebutted, it is conclusive. (Citing cases.) However, the fact which will excuse the violation of a statute has been defined by the court as one resulting 'from causes or things beyond the control of the person charged with the violation.' (Citing cases.)' Satterlee v. Glenn School District, suprs, 29 Cal.2d page 589, 177 P.2d page 283. And, 29 Cal.2d on page 590, 177 P.2d on page 284: 'In the application of this rule each violaion of a statutory requirement must be considered in connection with the surrounding circumstances. Ordinarily, the excuse relied upon by the violator presents a question of fact for the jury's determination. As stated in Scalf v. Eicher, supra, 11 Cal.App.2d (44) at page 54, 53 P.2d (368) at page 373: 'Whether or not a violation of a statute or ordinance proximately contributed to an accident and whether the violation was excusable or justifiable are questions of fact except in a case where 'the court is impelled to say that from the facts reasonable men can draw but one inference, and that an inference pointing unerringly to the negligence of the plaintiff contributing to his injury.'"

A search of the record reveals that the only instruction requested by the plaintiff with reference to section 560(a) of the Vehicle Code was the section itself. This was given, as requested, by the trial court. Ordinarily, before an appellant may complain of the lack of an instruction, he must have made a request that the charge be made more specific, or ask for qualifying instructions. This general rule is apparently qualified by the rule that an appellant may complain, in the absence of such request, where the instruction given erroneously states the applicable law and prejudice is suffered thereby. Lane v. Pacific Greyhound Lines, 26 Cal.2d 575, 587, 160 P.2d 21; Tabata v. Murane, 24 Cal.2d 221, 148 P.2d 605; Colgrove v. Lompoc, etc., Club, 51 Cal.App.2d 18, 124 P.2d 128. The instruction given differs very slightly from Instruction 149 (BAJI) which reads as follows: 'Conduct which is in violation of (applicable code section) just read to you constitutes negligence per se. This means that if the evidence supports a finding, and you do find, that a person did so conduct himself, it requires a presumption that he (or) (she) was negligent. However, such presumption is not conclusive. It may be overcome by other evidence showing that under all the circumstances surrounding the event, the conduct in question was excusable, justifiable and such as might reasonably have been expected from a person of ordinary prudence. In this connection, you may assume that a person of ordinary prudence will reasonably endeavor to obey the law and will do so unless causes, not of his own intended making, induce him, without moral fault, to do otherwise.' This instruction (149, BAJI) was approved by this court in Combs v. Los Angeles Railway Corp., 29 Cal.2d 606, 610, 177 P.2d 293. In the instant case an instruction was given defining a presumption: 'A presumption is a deduction which the law expressly directs to be made from particular facts. Unless declared by law to be conclusive, it may be controverted by other evidence, direct or indirect; but unless so controverted the jury is bound to find in accordance with the presumption.'

Undoubtedly the instruction given on the effect of a violation of a statute should have been qualified by an instruction on the type of evidence necessary to rebut the presumption of negligence. In the Satterlee case it is said that '* * * the fact which will excuse the violation of a statute has been defined by the court as one resulting 'from causes or things beyond the control of the person charged with the violation. '' The...